Book Review: California Habeas Handbook 2.0 by Kent A. Russell
Reviewed by Christopher Zoukis
The writ of habeas corpus is an extraordinary remedy that allows a person held against his or her will by the state to challenge the legality of confinement. It is often referred to as “The Great Writ,” and has its roots in common law going back hundreds of years. The U.S. Constitution forbids the suspension of the writ except in the case of rebellion or invasion.
The writ of habeas corpus has provided protection to citizens against improper restrictions on liberty. Despite its continued existence in American jurisprudence, the writ of habeas corpus has been heavily restrained over the last several decades. While prisoners may still use the writ to challenge confinement, procedural and substantive roadblocks present serious impediments to relief.
The chief curtailment of the writ came in the form of the federal law known as the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit referred to the AEDPA as “a twisted labyrinth of deliberately crafted legal obstacles that make it as difficult for habeas petitioners to succeed in pursuing the writ as it would be for a Supreme Court justice to strike out Babe Ruth, Joe DiMaggio and Mickey Mantle in succession.”
Despite the reality of modern habeas corpus litigation, the writ remains an available method to contest confinement. For prisoners pursuing a writ of habeas corpus on their own, the journey is fraught with difficulty and the terrain loaded with traps for the unwary.
But there is help for prisoners. For over 20 years, attorney and habeas corpus expert Kent A. Russell has published the California Habeas Handbook (“CHH”). The accessible, authoritative and (in some cases, literally) lifesaving CHH has provided prisoners in California and beyond everything they need to navigate the minefield of habeas corpus litigation.
A new edition became available in January 2018. The California Habeas Handbook 2.0 includes updates, as well as two new chapters focusing on criminal-justice reform efforts in California and parole for California prisoners.
Attorney Russell makes it clear that winning habeas corpus relief is not easy. CHH 2.0 starts out with a “gut check,” but notes an important point: Habeas litigation may be difficult, but it is available for those who are suffering an injustice. Prisoners with CHH 2.0 at their fingertips can and should pursue their habeas claims.
Russell provides a comprehensive history of The Great Writ in Chapter 3 of CHH 2.0. This is a deceptively crucial part of the book; in order to understand habeas litigation, it is advisable to know how modern habeas law and procedure developed. One important point made here helps to make clear why statutes like the AEDPA exist. State prisoners must, in almost every case, discover and present all habeas evidence in state court first. It is no longer possible to rely on federal courts.
Post-AEDPA habeas corpus litigation at the state level has taken on a new level of importance. In the fourth chapter of CHH 2.0, which is devoted entirely to in-state, post-conviction and habeas practice, Russell underscores why pre-federal filings are so important. All claims, even those that will only find relief in federal court, must be fully brought and “exhausted” in state court first.
The state chapter in CHH 2.0 also includes tips on avoiding the deadly “procedural default.” This occurs when a state high court denies a habeas petition on procedural, as opposed to substantive, grounds. A claim that is denied on procedural grounds was not denied on the merits, and therefore is not exhausted for purposes of the AEDPA. Procedural defaults are significant impediments to federal habeas corpus relief, so they must be avoided by following Russell’s advice: “[F]ile on time, follow the rules, and state your habeas claims clearly and with all documentary support.” With CHH 2.0 by your side, procedural defaults are avoidable.
State habeas corpus petitions are almost always denied, but must be denied in a particular way. Once this is accomplished, it is time to move on to federal habeas litigation—the subject of Chapter Five. In order to obtain relief, a petitioner must show denial of a fundamental right derived from the U.S. Constitution and prejudice resulting from the error.
Russell takes the habeas litigant through the drafting process from start to finish. The petition and supporting documents are crucial; they tell the court how the law was violated and provide supporting facts and law. Sample petitions are supplied in the Appendix section.
Chapter Five also includes a discussion of how the government will respond to a federal habeas petition, and what those responses mean. This response is often in the form of a motion to dismiss, and almost always argues that the petition is untimely, the petitioner failed to exhaust, or the claims were defaulted at the state level. Russell provides the reader with an understanding of these defenses and explains how to draft a Traverse (or Reply) to the government’s arguments.
The central goal of habeas litigation is to be granted an evidentiary hearing. Unfortunately, most claims do not go to hearing. As such, a habeas litigant may then appeal from the magistrate’s report and recommendation to the district court, and then to the U.S. Court of Appeals. A denial at that level is usually a death knell, so Russell provides everything a petitioner needs to properly appeal.
Federal habeas litigation is a difficult and sometimes soul-crushing endeavor. The AEDPA made the likelihood of winning habeas relief very slim. Russell recognizes the difficulties presented by the AEDPA and includes an entire chapter on the “AEDPA Agenda.” Here, the petitioner will learn the power of the AEDPA to smite an otherwise valid claim and how to avoid demise. Chapter Seven walks the reader through the process of form filling. This is quite helpful, because habeas petitions at both the state and federal level are form-driven. The California habeas form as well as a generic form are provided, with guidance on how to fill out each section.
Anyone who has been driven to the brink by legal research will appreciate what is quite possibly the most valuable and user-friendly part of CHH 2.0—the “Habeas Grounds Table” in Chapter Eight. Organized by categories such as State’s Investigation, Charges, Discovery, Guilty Pleas, and more, the Grounds Table lists over 100 previously successful habeas corpus grounds, as well as the constitutional right that was violated together with the U.S. Supreme Court decision that recognized the ground.
Chapter Nine is all new in this edition of CHH 2.0. With the assistance of attorney and parole expert Susan Jordan, Russell goes through newly enacted post-conviction remedies available to California prisoners. These include reforms to California’s “3 Strikes” laws (Prop 36), the reclassification of certain felonies as misdemeanors, which allows for retroactive application and resentencing in some cases (Prop 47), changes in California’s juvenile sentencing laws in response to the U.S. Supreme Court’s decisions in Miller v. Alabama, 132 S.Ct. 2455 (2012), and Graham v. Florida, 560 U.S. 48 (2010)(the Youth Offender Parole Law), and Senate Bill 9, which also addresses changes to juvenile sentencing practices.
The final chapter is written entirely by Susan Jordan and focuses on parole in California. Here, Jordan takes California prisoners through every milestone in the parole process, starting on day one. This chapter includes a handy timeline of each milestone—prisoners will learn what to do immediately, what to do in 1 to 3 years, what to do in the year prior to a parole hearing, and more. Even for those California prisoners who are pursuing habeas relief, this chapter is useful. If you don’t win relief on your habeas petition, parole may be the next best thing.
CHH 2.0 also includes a discussion about hiring Kent Russell for a habeas claim. There is good advice here about hiring a private lawyer for what is an extraordinarily complex area of the law, but Russell acknowledges that most prisoners won’t be able to afford one. For those who can, he devotes 15 pages to explaining exactly what he will (or won’t) do, what it will cost, and what a client’s expectations should be.
There’s also an optional CD-Rom available that contains over 75 complete, unedited copies of some of the most useful documents that have actually been filed in both state and federal habeas cases by Russell during his decades of practice.
CHH 2.0 is an invaluable resource. Every jailhouse lawyer should have it on hand. And the ultimate testament to CHH 2.0 is this: Every private lawyer who handles habeas corpus petitions in California (and elsewhere) should have Kent Russell’s book on the shelf, as well.